The Cross-border Continuity of Personal Identity in the European Union

Silvia Marino

The social meaning of the cross-border circulation of the persons inside the European Union (EU) requires that individuals' fundamental rights are guaranteed. One important concern is the right to personal identity, and specially to the name of the person, being an aspect of the right to private life (art. 8 of the European Convention of Human Rights; i.e: ECtHR's case Burghartz), which must be safeguarded also in cross-borders cases (ECtHR's case Henry Kismoun).The transnational continuity of the personal identity is not an easy task even inside the EU, since it has not competence in matters related to personal status; neither common Private International Law's (PIL) rules have been enacted. The Member States freedom to legislate can create a fragmentation, once the border is crossed. The case-law of the Court of Justice of the European Union (CJEU) has already looked for a balance between the right to free movement, the right to the personal identity, the States' sovereignty and PIL. Briefly said, names duly acquired abroad must be recognised, in order not to hinder the free movement, except for proportionate grounds resting on public policy (García Avello, Grunkin and Paul, Sayn-Wittgenstein, Runevič-Vardyn and Wardyn). The concrete impact of this rule is not yet entirely clear (see the pending proceeding Nabiel Peter Bogendorff von Wolffersdorff).Against this background, a clearer solution must rest on uniform rules. In order to safeguard the right to personal identity, the EU could establish uniform choice of law rules on the law applicable to the attribution of names, and every Member State would apply the same law to determine one individuals' name. Moreover, the cross-border acceptation of public documents, to be introduced in the nearest future, will strengthen the free circulation, the proof and the certification of the "common" name duly acquired in one Member State.

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